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Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20212J1581999-09-30030 September 1999 Order Approving Transfer of License & Conforming Agreement. Orders That License Transfer Approved,Subj to Listed Conditions ML20205D4901999-02-22022 February 1999 Transcript of 990222 Informal Public Hearing on 10CFR2.206 Petition in Rockville,Md.Pp 1-105.Supporting Documentation Encl ML20198L1911998-12-21021 December 1998 Submits Comments Re Proposed Rule to Revise 10CFR50.59, Changes,Tests & Experiments ML20198L1361998-12-15015 December 1998 Comment Opposing Proposed Rule 10CFR50.65 Re Requirements for Monitoring Effectiveness of Maint of NPP ML20198D9711998-11-0909 November 1998 Petition Per 10CFR2.206 Requesting That Facility Be Immediately Shut Down & OL Be Suspended or Modified Until Such Time That Facility Design & Licensing Bases Properly Updated to Permit Operation with Failed Fuel Assemblies ML20155F4561998-08-26026 August 1998 Demand for Info Re False Info Allegedly Provided by Wh Clark to Two NRC Licensees.Nrc Considering Whether Individual Should Be Prohibited from Working in NRC-licensed Activities for Period of 5 Yrs ML20236V5261998-07-20020 July 1998 Computer Access & Operating Agreement Between Cleveland Electric Illuminating Co & NRC PY-CEI-NRR-2284, Comment Opposing Proposed Generic Communication, Lab Testing of Nuclear-Grade Activated Charcoal1998-05-21021 May 1998 Comment Opposing Proposed Generic Communication, Lab Testing of Nuclear-Grade Activated Charcoal ML20216B5111998-04-0909 April 1998 Order Imposing Civil Monetary Penalty.Denies Request for Remission of Violation C,Ea 97-430 & Orders Licensee to Pay Civil Penalty in Amount of $50,000 within Next 30 Days PY-CEI-NRR-2269, Comment on Proposed Rule 10CFR50.NRC Should Demonstrate That Not Only Is Code Process Flawed,But That Proposed Change Justified from Cost Versus Safety Protective1998-04-0303 April 1998 Comment on Proposed Rule 10CFR50.NRC Should Demonstrate That Not Only Is Code Process Flawed,But That Proposed Change Justified from Cost Versus Safety Protective ML20217J2161998-03-27027 March 1998 Comment on Proposed Generic Communication Re Lab Testing of nuclear-grade Activated Charcoal ML20217F5361998-03-25025 March 1998 Comment Opposing Draft Regulatory Guide DG-1071, Std Format & Content for Post-Shutdown Decommissioning Activities Rept ML20217J0661998-03-11011 March 1998 Order Approving Application Re Merger Agreement Between Dqe, Inc & Allegheny Power System,Inc ML20216G3821998-03-11011 March 1998 Order Approving Application Re Merger Agreement Between Duquesne Light Co & Allegheny Power Systems,Inc ML20199J4651998-01-22022 January 1998 Comment Opposing Draft RG-1070, Sampling Plans Used for Dedicating Simple Metallic Commercial Grade Items for Use in Npps. RG Unnecessary Based on Use of EPRI Guideline & Excellent Past History of Commercial Grade Items at DBNPS ML20198P9311997-11-0707 November 1997 Comments of American Municipal Power-Ohio,Inc.NRC Should Require Allegheny Power Sys,Inc to Affirm That Capco Antitrust License Conditions Will Be Followed ML20148M6421997-06-17017 June 1997 Comment on Proposed NRC Bulletin 96-001,suppl 1 Re Control Rod Insertion Problems.Nrc Should Review Info Provided in Licensee 970130 Submittal & Remove Statements of Applicability to B&W Reactors from Suppl Before Final Form ML20134L3401997-01-22022 January 1997 Resolution 96-R-85, Resolution Supporting Merger of Centerior Energy Corp & Ohio Edison Under New Holding Co Called Firstenergy ML20133B6941996-12-18018 December 1996 Submits Ordinance 850-96 Re Approval of Merger of Centerior & Oh Edison Into Firstenergy ML20135F4731996-12-0606 December 1996 Memorandum & Order CLI-96-13.* Commission Reverses & Vacates ASLB LBP-95-17 Which Granted Motion for Summary Disposition Submitted by Ocre & Hiatt.W/Certificate of Svc.Served on 961206 ML20132A8461996-12-0202 December 1996 Resolution 20-1996 Supporting Merger of Ohio Edison & Centerior Corp Under New Holding Company Called Firstenergy ML20134M6191996-10-28028 October 1996 Proclamation of Support by City of Sandusky,Oh Re Merger of Ohio Edison and Centerior Energy Corp ML20112J8281996-06-18018 June 1996 Licensee Reply Brief on Review of Licensing Board Decision LBP-95-17.* W/Certificate of Svc ML20112D8721996-05-29029 May 1996 Intervenor Brief in Support of Commission Affirmation of LBP-95-17.* Commission Should Affirm Licensing Board Decision.W/Certificate of Svc ML20108D9571996-05-0303 May 1996 CEI Response to City of Cleveland 2.206 Petition.Nrc Should Deny Petition ML20108B7571996-04-26026 April 1996 Licensee Brief on Review of Licensing Board Decision LBP-95-17.* Recommends That Commission Reverse Board Memorandum & Order Issued 951004.W/Certificate of Svc & Svc List PY-CEI-NRR-2034, Comment Opposing Proposed Rule 10CFR20 Re Reporting Requirements for Unauthorized Use of Licensed Radioactive Matl1996-03-11011 March 1996 Comment Opposing Proposed Rule 10CFR20 Re Reporting Requirements for Unauthorized Use of Licensed Radioactive Matl ML20097G5731996-02-13013 February 1996 Comment Supporting Petition for Rulemaking PRM-50-63 Re Use of Potassium Iodide ML20097B8911996-01-23023 January 1996 Motion of City of Cleveland,Oh for Partial Summary Judgement or in Alternative,For Severance of Issue & Expedited Hearing Procedures ML20101B5841996-01-23023 January 1996 Motion of City of Cleveland,Oh for Partial Summary Judgement Or,In Alternative,For Severance of Issue & Expedited Hearing Procedures.W/Certificate of Svc ML20097B8721996-01-23023 January 1996 Petition of City of Cleveland,Oh for Expedited Issuance of Nov,Enforcement of License Conditions & Imposition of Appropriate Fines,Per 10CFR2.201,2.202,2.205 & 2.206 ML20096E9781996-01-0808 January 1996 Comment on Proposed Suppl to GL 83-11, Licensee Qualification for Performing Safety Analyses in Support of Licensing Actions ML20096E2471996-01-0303 January 1996 Comment on PRM 50-64 Re Stockpiling Ki for Use as Thyroid Protectant in Event of Nuclear Accident.Supports Distribution of Ki to Public ML20094N1951995-11-17017 November 1995 Oh Edison Application for License Transfer in Connection W/ Sale & Related Transactions ML20094M5941995-11-15015 November 1995 Intervenors Answer to Licensees Petition for Review.* Intervenor Conclude That Commission Should Not Review Board Decision.W/Certificate of Svc ML20094J9141995-11-0707 November 1995 Petition for Review.* Submits That Commission Review of Board Decision Appropriate Under 10CFR2.786. W/Certificate of Svc & Svc List ML20093N9491995-10-23023 October 1995 Licensee Request for Extension of Time to File Petition for Review.* Requests That Commission Grant Extension Until 951107 of Deadline for Filing Petition for Review. W/Certificate of Svc ML20087J3611995-08-14014 August 1995 Comment Opposing Proposed Rule 10CFR2 Re Rev of NRC Enforcement Policy ML20086M8241995-06-29029 June 1995 Comment on Proposed Review of NRC Insp Rept Content,Format & Style ML20083M8701995-05-10010 May 1995 Comment on Proposed Rule 10CFR50 Re Primary Reactor Containment Leakage Testing for Water-Cooled Power Reactor ML20081C8841995-03-0303 March 1995 Comment Re NRC Proposed Generic Communication Suppl 5 to GL 88-20, IPEEE for Severe Accident Vulnerabilities. Util Ack NRC Efforts to Reduce Scope of GL 88-20,but Believes That Proposed Changes Still Overly Restrictive ML20077M5831995-01-0404 January 1995 Comment Opposing Proposed Rule 10CFR50 Re Shutdown & low-power Operations for Nuclear Power Reactors ML20072K3611994-08-16016 August 1994 Comment Opposing Proposed Rule 10CFR72 Re Plans for Storage of Sf at Davis Besse NPP ML20072K4411994-08-14014 August 1994 Comment Opposing Proposed Rule 10CFR72 Re Dry Storage of Nuclear Waste at Facility in Toledo,Oh ML20072K5261994-08-12012 August 1994 Comment Supporting Proposed Rule 10CFR72 Re Addition of Standardized NUHOMS Horizontal Modular Storage Sys to List of Approved Sf Storage Casks ML20072B1581994-08-0909 August 1994 Comment Opposing Proposed Rule 10CFR72 on List of Approved Spent Fuel Storage Casks:Addition ML20029D8221994-04-19019 April 1994 Comments on Proposed Rule 10CFR50 Re Codes & Stds for Nuclear Power Plants;Subsection IWE & Subsection Iwl ML20065L3571994-04-0505 April 1994 Intervenors Answer to NRC Staff Response to Intervenors Motion for Summary Disposition & Licensees Cross Motion for Summary Disposition.* Urges Board to Deny Licensee Cross Motion.W/Certificate of Svc ML20064N6081994-03-21021 March 1994 Licensee Cross Motion for Summary Disposition & Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Motion for Summary Disposition.* Moves for Decision in Licensee Favor on Ocre Contention ML20064N6341994-03-21021 March 1994 Affidavit of RW Schrauder in Support of Licensee Cross Motion for Summary Disposition & Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Motion for Summary Disposition.W/Certificate of Svc 1999-09-30
[Table view] Category:PLEADINGS
MONTHYEARML20198D9711998-11-0909 November 1998 Petition Per 10CFR2.206 Requesting That Facility Be Immediately Shut Down & OL Be Suspended or Modified Until Such Time That Facility Design & Licensing Bases Properly Updated to Permit Operation with Failed Fuel Assemblies ML20112J8281996-06-18018 June 1996 Licensee Reply Brief on Review of Licensing Board Decision LBP-95-17.* W/Certificate of Svc ML20112D8721996-05-29029 May 1996 Intervenor Brief in Support of Commission Affirmation of LBP-95-17.* Commission Should Affirm Licensing Board Decision.W/Certificate of Svc ML20097B8721996-01-23023 January 1996 Petition of City of Cleveland,Oh for Expedited Issuance of Nov,Enforcement of License Conditions & Imposition of Appropriate Fines,Per 10CFR2.201,2.202,2.205 & 2.206 ML20101B5841996-01-23023 January 1996 Motion of City of Cleveland,Oh for Partial Summary Judgement Or,In Alternative,For Severance of Issue & Expedited Hearing Procedures.W/Certificate of Svc ML20094M5941995-11-15015 November 1995 Intervenors Answer to Licensees Petition for Review.* Intervenor Conclude That Commission Should Not Review Board Decision.W/Certificate of Svc ML20094J9141995-11-0707 November 1995 Petition for Review.* Submits That Commission Review of Board Decision Appropriate Under 10CFR2.786. W/Certificate of Svc & Svc List ML20093N9491995-10-23023 October 1995 Licensee Request for Extension of Time to File Petition for Review.* Requests That Commission Grant Extension Until 951107 of Deadline for Filing Petition for Review. W/Certificate of Svc ML20065L3571994-04-0505 April 1994 Intervenors Answer to NRC Staff Response to Intervenors Motion for Summary Disposition & Licensees Cross Motion for Summary Disposition.* Urges Board to Deny Licensee Cross Motion.W/Certificate of Svc ML20064N6081994-03-21021 March 1994 Licensee Cross Motion for Summary Disposition & Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Motion for Summary Disposition.* Moves for Decision in Licensee Favor on Ocre Contention ML20063L4621994-02-0707 February 1994 Motion for Summary Disposition.* Intervenors Request That Board Grant Summary Disposition Favorably & Issue Declaratory Relief by Finding Challenged Portion of Amend 45 to Be in Violation of Aea.W/Certificate of Svc ML20058P4451993-12-13013 December 1993 Licensee Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Supplemental Petition for Leave to Intervene.* W/Certificate of Svc ML20059B0701993-10-12012 October 1993 Motion to Defer Consideration of Remanded Issue.* Requests That Licensing Board Defer Consideration of Remanded Issue Pending Outcome of Commission Review of 2.206 Process.W/ Certificate of Svc ML20126D5171992-12-23023 December 1992 City of Brook Park Answer to Petitions for Review.* Opposes Applicants 921208 Petitions for Review Based on Fact That ASLB Decision in proceeding,LBP-92-32,adequately Addressed Issues Raised in Petitions.W/Certificate of Svc ML20126D5461992-12-23023 December 1992 Answer of Cleveland Electric Illuminating Co & Toledo Edison Co to Limited Petition for Review of City of Cleveland,Oh of 921118 Decision of Aslb.* Commission Should Deny City of Cleveland Petition.W/Certificate of Svc ML20126D5781992-12-23023 December 1992 Answer of American Municipal Power-OH,Inc in Opposition to Petitions for Review of Oh Edison Co & Cleveland Electric Illuminating Co/Toledo Edison Co.* W/Certificate of Svc ML20126D5801992-12-23023 December 1992 NRC Staff Answer in Response to Petitions for Review Filed by Oh Edison Co,Cleveland Electric Illuminating Co,Toledo Edison Co & City of Cleveland.* W/Certificate of Svc ML20126F6501992-12-23023 December 1992 Answer of City of Cleveland,Oh,Intervenor,In Opposition to Petitions for Review of 921118 Decision of Aslb.* Petitioners Petitions for Review Should Be Denied. Certificate of Svc Encl ML20126D4761992-12-22022 December 1992 Alabama Electric Cooperative Answer to Applicants Petitions for Review.* Applicants 921208 Petitions for Review Should Be Denied.W/Certificate of Svc ML20126A5751992-12-0808 December 1992 Petition for Review.* Requests That NRC Review LBP-92-32, 921118 Board Decision in Proceeding.Board Erroneously Interpreted Section 105(c) of AEA by Ignoring Fundamental Underpinning of Statute.W/Certificate of Svc ML20126A5871992-12-0808 December 1992 Petition for Review.* Requests That NRC Review ASLB 921118 decision,LBP-92-32.Board Erroneously Interpreted Section 105(c) of AEA by Ignoring Fundamental Underplanning of Statute.Certificate of Svc Encl ML20126A7651992-11-18018 November 1992 Limited Petition for Review of City of Cleveland,Oh of 921118 Decision of Aslb.* City of Cleveland Petition for Review Should Be Granted.W/Certificate of Svc ML20116M4671992-11-16016 November 1992 Licensee Response to Lake County Commissioners 10CFR2.206 Petition.* Petition Should Be Denied.Certificate of Svc Encl ML20116E7941992-09-29029 September 1992 Petition for Action to Relieve Undue Risk Posed by Const of Low Level Radwaste at Perry Plant.* Requests Public Hearing Be Held Prior to Const of Storage Site & Const Should Be Suspended Until NRC or Util Produces EIS on Risks ML20101N5131992-07-0808 July 1992 City of Cleveland Opposition to Applicant Request That Licensing Board Disregard Certain Arguments of City of Cleveland Counsel in Oral Argument.Certificate of Svc & Svc List Encl ML20101N6401992-07-0707 July 1992 Reply by American Municipal Power-Ohio,Inc to Applicant Request That Board Disregard Factual Issues.* Applicant Requests Board Disregard Irrelevant Assertions by All Parties.W/Certificate of Svc ML20101K2101992-06-29029 June 1992 Applicants Request That Licensing Board Disregard Factual Issues Discussed During Oral Argument.* Foregoing Issues Represent Factual Issues Which Board Should Disregard in Disposition of Phase One of Case.W/Certificate of Svc ML20098D5181992-05-26026 May 1992 Reply of City of Cleveland,Oh to Arguments of Applicants & NRC Staff W/Respect to Issues of Law of Case,Res Judicata, Collateral Estoppel & Laches.* W/Certificate of Svc & Svc List ML20096A6281992-05-0707 May 1992 Applicants Reply to Opposition cross-motions for Summary Disposition & Responses to Applicants Motion for Summary Disposition.* Applicants Conclude NRC Has No Authority to Retain Antitrust Licensing Conditions.W/Certificate of Svc ML20090F4261992-03-31031 March 1992 Motion for Summary Disposition of Intervenor,City of Cleveland,Oh & Answer in Opposition to Applicant Motion for Summary Disposition.* City of Cleveland,Oh & Applicant Motions Should Be Denied.W/Certificate of Svc ML20094K3791992-03-18018 March 1992 Applicants Motion to Amend Summary Disposition Schedule.* Applicants Request That Motion to Amend Summary Disposition Schedule Be Granted.W/Certificate of Svc ML20094J2891992-03-0909 March 1992 Response of DOJ to Applicant Motion for Summary Disposition.* Urges ASLB to Resolve Bedrock Legal Issue in Negative & Concludes That Commission Possess Legal Authority to Retain License Conditions.W/Certificate of Svc ML20091N1241992-01-24024 January 1992 Applicants Answer to Cleveland Motion to Amend Schedule for Summary Disposition Motions.* Applicants Have No Objection to Request for Opportunity to Submit Reply.W/Certificate of Svc ML20087E7821992-01-16016 January 1992 Motion to Amend Schedule for Summary Disposition Motions.* Cleveland Requests That Motion Be Granted & 911114 Order Establishing Schedule for Motions for Summary Disposition Be Amended.W/Certificate of Svc & Svc List ML20086U5371992-01-0606 January 1992 Applicants Motion for Summary Disposition.* Requests That Board Grant Applicants Motion for Summary Disposition Due to Lack of NRC Authority to Retain Antitrust License Conditions.W/Certificate of Svc ML20086J4821991-12-31031 December 1991 Reply Brief of City of Cleveland,Oh in Support of Notice of Appeal of Prehearing Conference Order Granting Request for Hearing.* Appeal Should Be Granted,Ref to Board Revoked & Applications Dismissed.W/Certificate of Svc ML20086Q9231991-12-27027 December 1991 Motion of City of Cleveland,Oh for Leave to File Reply & Reply to Applicants Answer to City Motion for Commission Revocation of Referral to ASLB & for Adoption of 910424 Decision as Commission Decision.W/Certificate of Svc ML20086Q3001991-12-24024 December 1991 Applicant Answer to Motion of City of Cleveland,Oh for Commission Revocation of Referral to ASLB & for Adoption of 910424 Decision as Commission Decision. * W/Certificate of Svc ML20091H7161991-12-19019 December 1991 Motion of City of Cleveland,Oh for Commission Revocation of Referral to ASLB & for Adoption of 910424 Decision as Commission Decision.W/Certificate of Svc ML20086N4601991-12-17017 December 1991 Licensees Response to Ohio Citizens for Responsible Energy, Inc & SL Hiatt Amended Petition for Leave to Intervene.* Determines That Intervenor Failed to Demonstrate Interest in Proceeding.W/Certificate of Svc & Svc List ML20086J4741991-12-0909 December 1991 Motion of City of Cleveland,Oh for Leave to File Reply Brief.* Motion to File Reply Should Be Granted for Listed Reasons ML20086G4001991-11-26026 November 1991 Ohio Edison Co Motion for Reconsideration.* Util Respectfully Requests That NRC Vacate CLI-91-15 & Direct Forthwith Answer to Licensee Motion to Compel.W/Certificate of Svc ML20079Q0301991-11-0606 November 1991 Oec Motion to Compel NRC Staff to Respond to Interrogatories.* Util Moves Board to Compel NRC to Respond Completely,Explicitly & Properly to Licensee Interrogatories.W/Certificate of Svc ML20083B5841991-09-0606 September 1991 Licensee Answer to Oh Citizens for Responsible Energy,Inc & SL Hiatt Petition for Leave to Intervene & Request for Hearing.* Ocre Has Shown No Interest in Proceeding.W/Notice of Appearance,Certificate of Svc & Svc List ML20076D0481991-07-18018 July 1991 Answer of Cleveland Electric & Toledo Edison to Petition of American Municipal Power-Ohio for Leave to Intervene.* Utils Believe That 910703 Petition Should Be Granted.W/Certificate of Svc ML20076D1611991-07-18018 July 1991 Answer of Ohio Edison Co to Petition of American Municipal Power-Ohio,Inc (AMP-Ohio) for Leave to Intervene.* Util Does Not Object to Admission of AMP-Ohio as Intervenor on Basis of Status as Beneficiary.W/Certificate of Svc ML20081K8961991-06-20020 June 1991 Alabama Electric Cooperative Reply to Oppositions Filed to Petition to Intervene.* Informs of Util Intention to Assure Vindication of Proper Legal Principle.W/Certificate of Svc ML20079D2211991-06-17017 June 1991 Answer of Ohio Edison Co to Opposition of City of Cleveland, Oh to Hearing W/Respect to Denial of Applications to Suspend Antitrust License Conditions & Petition to Intervene in Event Hearing Requested & Granted.W/Certificate of Svc ML20079D2391991-06-17017 June 1991 Answer of Cleveland Electric Illuminating Co & Toledo Edison Co to Opposition of City of Cleveland,Ohio,To Hearing W/Respect to Denial of Applications to Suspend Antitrust License Conditions & Petition to Intervene.* ML20079D2151991-06-14014 June 1991 Answer of Ohio Edison Co to Petition of Alabama Electric Cooperative,Inc for Leave to Intervene.* Alabama Electric Cooperative,Inc Petition for Leave to Interveve Should Be Denied.W/Certificate of Svc 1998-11-09
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& - MAY 2 01978 > ;9)
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- . -e , Smetary UNITED STATES OF AMERICA $ s.oC " /g NUCLEAR REGULATORY COMMISSION N 6 Before the Atomic Safety and Licensing Appeal Board 1
In The Matter Of O T. ' ,o Tile TOLEDO EDISON COMPANY and ) Docket Nos. 50-346 D THE CLEVELAND ELECTRIC ILLUMINATING COMPANY ) '50-500A (Davis-Besse Nuclear Power Station, ) 50-501A Units 1, 2 and 3) )
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THE CLEVELAND ELECTRIC ILLUMINATING COMPANY, ) Docket Nos. 50-440A et al. ) 50-441A (Perry Nuclear Power Plant, Units 1 and 2) )
SQUIRE, SANDERS AND DEMPSEY'S RESPONSE TO HEARING MEMORANDUM OF CITY OF CLEVELAND ON ISSUE OF PROCEDURAL DUE PROCESS MICHAEL R. GALLACHER Attorney for Squire, Sanders & Dempsey 630 Bulkley Building Cleveland, Ohio 44115 (216) 241-5310 James B. Davis, Esq.
Special Counsel Hahn, Loeser, Freedheim, Dean & Wellman National City - E. 6th Building Cleveland, Ohio 44114 Vincent C. Campanella Director of Law Robert D. Hart First Assistant Director of Law Hay 15, 1976 213 City llall Cleveland, Ohio' 44114 (216) 649-2737 Attorneys for City of Cleveland 8 0 02 240 MO 4
For the NRC Staff Joseph Rutberg, Esq.
Chief Antitrust Counsel ,
Benjamin H. Vogler, Esq. t Assistant Chief Antitrust Counsel l Roy P. Lessy, Jr., Esq. :
Counsel Jack R. Goldberg, Esq. f Counsel t
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INTRODUCTION The Hearing Memorandum Of City Of Cleveland On The Issue Of Procedural Due Process was handed to counsel for SS&D at the time of the oral argument before the Appeal Board on May 10, 1976. It has now been examined and re-quires only brief comment with respect to two points.
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THE CASES CITED BY THE CITY TO SUPPORT ITS POSITION ON PROCEDURAL DUE PROCESS CONFIRM THAT SSSD WAS DEPRIVED OF DUE PROCESS IN THE INSTANT PROCEEDINGS.
,The City cites In Re: Claiborne, 119 F.2d 647 (C.A. 1 1941) as directly inpoint.1/ An examination of the opinion discloses that counsel for the defendants filed a motion requesting the court to issue a rule to show cause inter alia, why discipline measures should not be taken against Attorney Claiborne. An order to show cause based upon the motion was issued by the court and a hearing of some three days duration uas thereaf ter held. Some evidence at the hearing seemed to indicate that Claiborne had engaged in un-professional conduct. The court requested an investigation be made and a report filed which was done. The court then issued its further order direct-ing Claiborne to appear to show cause why he should not be disbarred. A copy of the order and a copy of the report setting forth the charges were served on Claiborne personally. A two day hearing was held thereaf ter before a different judge. These " proceedings on the order to show cause why the appellant should not be disbarred were conducted de novo on the informal charges made in the report. . . ."2/ The charges appearing in the report served upon Claiborne were precise, related to particular specific acts of misconduct and are particularized in the court's opinion.2!
1/ earing Memorandum of City of Cleveland On Issue Of Procedural Due
-H Process, dated May 10, 1976, p. 9.
2/19'F.2d at 650 2/ Ibid., at 649 ,
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In Willner v. Committee on Character, 373 U.S. 96 (1963) the repeated refusal of the New York Appellate Division to admit an applicant to practice before the Bar of the State of New York was reversed on the ground that the applicant was denied procedural due process. Even though New York did not have any procedure whereby an applicant for admission was provided notice or a hearing prior to an adverse ruling, the Supreme Court of the United States held that:
"(f) Petitioner was clearly entitled to notice of, and a hearing on, on the grounds for his rejection, either befgye the committee or before the appellate division."-
The language from the case which the City quotes 5/ essentially states that where there are no disputed facts (essentially a Rule 56 summary judgment situation), a further hearing is unnecessary. Needless to say, the language cited is inapplicable uhere there is a factual dispute.as there is in this case.
The Claiborne and Willner cases require notice: specification of charges and an opportunity to be heard. It is difficult to understand how the City interprets these cases to constitute support for its position.
$/373 U.S. at 97, 104-105 El Hearing Memorandum, p. 9-10
a II.
PROCEDURAL DUE PROCESS IN THE INSTANT PROCEEDING APPLIES ONLY TO THE RESPONDENT, SS&D. IF THE APPEAL BOARD ACCEPTS THE STAFF'S POSITION THAT THE SPECIAL BOARD IS THE ADJUDI-CATORY BODY UNDER SECTION 2.713(c) THEN THE SPECIAL BOARD'S FINDINGS AND ORDER SHOULD BE AFFIR'IED BECAUSE THE CITY HAS RESTED ITS CASE AND SHOULD NOT N0',' BE PEFJ11TTED TO REOPEN IT While analogies are never on all fours and occasioaally may present more problems than solutions, an analogy here may, nevertheless, be helpful.
The City, acting as the complainant, filed its request for relief and put on its case. It then rested. Not only did it rest in the customary sense of adducing no further evidence and of announcing its intention to the court, but it ~ rested in the more formal sense of filing a " Motion To Limit Hearing" which, when granted by the Special Board, prevented SS&D. from putting on its defensive case, and which constituted a representation by the City to the Special Board that it had presented all of the evidence it intended to present (with the' limited proviso that if- SS&D vere permitted to adduce defensive evidence the City wanted an opportunity to rebut it). Rebuttal never became necessary under the City's alternative motions because SS&D was denied an opportunity to put on a defense af ter the City rested. Further annlogizing the Nuclear Regulatory Commission procedure with traditional court procedure, the City having rested, the Special' Board, acting as the finder of fact (jury or judge), made its findings on the evidence presented by the City and such additional' evidence as became part of the record through SS&D's efforts in the course of the City's case.
On the fact issues presented the Special Board found in favor of SS&D.
- Whether it found on the basis of an estoppel or a waiver or on the ground I
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that the City had failed to meet its burden of proof is irrelevant. The two issue rule should apply and if the Special Board's ruling is supportable on any of the foregoing bases, it should not be reversed.
The question now before the Appeal Board is twofold; 1. Does procedural due process require the Appeal Board to permit the City to reopen its case (another bi,te at the apple)? and 2. Is there any evidence to raise a fact issue as to any of the bases upon which the Special Board might have found in favor of SS&D?
Due process is not a right of the complainant. Due process does not require that the City be given an opportunity to reopen its case. Tradi-tional notions of fair play and justice do not reauire it. The City chose to rest. It chose to close its casc. This was done e:1untarily and over the objection of SS&D in the face of initial ruling of the Special Board.
As in traditional litigation, the plaintiff having rested and the matter having been submitted to the jury, the plaintiff should not be permitted thereaf ter to reopen to adduce further eivdence.
On the question of whether there is any evidence to raise a f act issue as to any of,the bases upon which the Special Board might have found in favor of SS&D, the record is quite clear. There is evidence from which actual knowledge could be inferred on the part of the Law Director or other respon-sible City official; there is evidence of conduct and correspondence from which consent or express waiver could be inferred; there is evidence of past conduct and present inducement relied on good faith from which estoppel or
_ implied waiver could be inferred. Morcover, there is evidence of the limited
and specialized disclosures given to municipal bond counsel as contrasted with disclosures to bond counsel arranging for the public sale of private securities (at least within the historical context of public financing prior to the New York City debacle) and there is evidence that no information, confidential or otherwise, was supplied by the City or had been communicated to CEI.
Above all, there remains the threshold issue of whether the City has satisfied its burden of proof.
Can this Board say that the evidence is in such a state that reasonable minds could come to but one conclusion and that conclusion be that SS&D was guilty of the charges?$/ To reverse the Special Board on the weight of the evidence, the Appeal Board would have to disregard totally the fact that of the six reasonable minds which considered the evidence at the fact finding level, four of those reasonable minds found in favor of SS&D.
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.k/For this Appeal ' Board to so find it would, in substance, have to find that ,
the Special Board should have " directed a verdict" against SS&D and in I favor of_the City.
CONCLUSION It is respectfully submitted that the Appeal Board should affirm the Special Board for the reasons set forth herein and for the reasons discussed in SS&D's earlier briefs. If the Appeal Board does not affirm the Special Board, then it is required under the dictates of procedural due process to return the disqualification proceeding for a full evidentiary hearing before another special board.
M M) . A ,// Rf M MICHAEL R. GALLAGHER Attorney for Squire, Sand s & Dempsey 630 Bulkley Building Cleveland, Ohio 44115 (216) 241-5310 e
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CERTIFICATE OF SERVICE I hereby certify that copics of SQUIRE, SANDERS AND DEMPSEY'S RESPONSE TO HEARING MEMORANDUM OF CITY OF CLEVELAND ON ISSUE OF PROCEDURAL DUE PROCESS were served by mailing same on May 15, 1976 to Vincent C. Campanella, Esq.
and Robert D. Hart, Esq., Ccunsel for the City of Cleveland; to James B.
Davis, Esq. , Special Counsel for the City of Cleveland; to Alan S. Rosenthal, Esq. , Jerome E. Sharfman, Esq'. , and Richard S. Salzman, Esq. , Chairman and Members respectively of the Appeal Board, and to Benjamin H. Vogler, Esq. ,
Assistant Chief Antitrust Counsel for the 1;RC Staff, at the addresses appear-ing on the Service List attached hereto; and by mailing the original and 20 copics to the Secretary, United States Nuclear Regulatory Commission, Washington, D.C. 20555, Attention Chief, Docketing and Service Section; and by mailing one copy each to the other persons listed on the attached Service List by Regular United States 1b11, First Class, Postage Prepaid, on the 15th day of May, 1976.
W : Lf/
MICHAEL R. GALLAGHER /
SERVICE LIST James B. Davis, Esq.
Director of Law 213 City llall Department of Law Cleveland,, Ohio 44114 -
Robert D. Ilart, Es'q.
First Assistant, Director of Law 213~ City llall ,
Cleveland, Ohio -44114 Douglas V. Rigler, Esq.
Chairman Atomic Safety & Licensing Board Panel Foley, Lardner, IIollabaugh & Jacobs 815 Connecticut Avenue,.N.W.
Washington, D. C.
Ivan W. Smith, Esq.
Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Com:nission Washington, D. C. 20555 John M. Frysiak,,Esq.
. Atomic Safety & Licensing Board Panel U.S. Nucicar Regulatory Commission Washington,-D. C. 20555 Cerald Charnof f, Esq.'
Wm. Bradford Reynolds, Esq.
Shau, Pittman, Potts & Trowbridge 1800 M. Street, N.W.
Washington, D. C. 20036 Mr. Chase R. Stephens
, Docketing & Service Section U.S. Nuclear Regulatory Commission
Washington, D.C. 20555 f
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Donald 11. Itauser, Esq.
Corporate Solicitor -
The Cleveland Elcetric Illuminating Company .
Post Office Box 5000 Clevela.nd, Ohio 44101
' John Lansdale, Jr., Esq.
Cox, Langford & Broten 21 Dupont Circle, N.U.
Washington, D. C. 20036 -
Reuben Coldberg, Esq.
David C. Iljelmfelt, Esq. '
1700 Pennsylvania Avenue, N.W.
Suite 550 , ..,
Washington,'D. C. 20006 ,
Alan S. Posenthal, Chairman Atomic Safety and Licensing Appeals Board U.S. Nucicar Regulatory Co= mission Washington, D. C. 20555 q Dr. John II. Euch Dr. Laurence K. Quarles
' Atcaic Safety and Licensing Appeals Board U.S. l'ucicar Regulatory Com:sission Unchington, D. C. 20555 . i >v :==- :: >
llovard K. Shapar, Esq.
E):ecutive Legal Director U.S. Nucicar Regulatorf Cocaission Washington, D. C. 20555
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Mr. Frank U. Karas, Chief Public Proceedings Branch Office of the Secretary U.S. Nuclear Regulatory Co=aission Uashington, D. C. 20555 Abraham Braitman, Esq.
Office of Antitrust & Indemnity
! U.S. Nucicar Regulatory Co=aission l Uashington, D. C. 20555 I -
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Frank R. C1okey, Esq.
Special Assistant Attorney General ,
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- Towna House Aparte.ents, Roora 219 Harrisburg, Pennsylvania 17105 - -.. .:.
Edward A. Matto, Esq.
Assistant Attorney Ceneral Chief, Antitrust Section a m. i m 30 East Broad Street, 15th Floor Coltnbus, Ohio 43215 .
Richard S. Sal:x.an, Chairman .
Atomic Safety and Licensing Appeals Doard U.S. Nuclear Regulatory Co:nission Washinston, D. C. 20555
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Michael C. Farrar Dr. U. Reed Johnson Atomic Safety and Licensing Appeals Board s
U.S. Nuclear Regulatory Corraission Uashington, D. C. 20555
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Andrew F. Popper, Esq.
Office of the Exacutive Legal Director
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U.S. Muclear Regulatory Coc ission Washington, D. C. 20555 Benjamin 11. Vogler, Esq. ~
Joseph Rutberg, Esq.
Robert J. Verdisco, Esq.
Roy P. Lessy, Jr., Esq. .
Office of the Ceneral Counsel Regulation
. U.S. Nuclear Regulatory Connission Uashington, D. C. 20555 Helvin C. Berger, Esq..
Joseph J. Saunders, Esq.
Steven H. Charno, Esq.
Janet R. Urban, Esq. 3
- Ruth Crecuspan Bell, Esq.
Antitrust Division Department of Justice Post Office Bo:: 7513 - "
Machington, D. C. 20044 - -
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. Christopher R. Sc h raff, Esq. ,
Assistant' Attorneys General Enviro:r:: ental Law Section 361 East Broad Street, 8th Floor Colu:: bus, Ohio 43215 Thomas J. Munsch, Jr., Esq._
General Attorney Duquesne Light Company 435 Sixth Avenue PittsburS h, Pennsylvania 15219 Joseph Rieser, Esq. .
Reed, Smith, Shaw & licClay -
Suite 440 1155 Fifteenth Street, II. J.
Washington, D. C. 20005 Terrance H. Eenbou, Esq. -
Uinthrop, Sti:ason, Putnan & Roberts 40 Wall Street
!!cu York, Ucu York 10005 Uallace L. Duncan, Esq.
Jon T. Brown, Esq.
Duncan, Browa, Ucinberg & Paluer 1700 Pennsylvania Avenue, N.W.
Uashington, D. C. 20006 Robert P. Mone, Esq.
George, Greck, Iting, McMchon & McConnaughey Colunbus Center 100 East Broad Street Columbus, Chio 43215 David IIcHaill Olds, Esq. .
John Heu. Crc =cr, Esq. -
Uillica S. Lerach, Esq.
Reed, Snith, Shau & IIcClay Post Office Box 2009 Pittsburgh, Pennsylvanin' 15230 .
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John C. Engle, President . .
A12-0 Inc.
. Municipal Building ,
20 High Street ,
Hamilton, Ohio 45012
- Victor F. Creensinde, Jr., Esq.
Principal Staff Counsel The Clevpland Electric Illuainating Compa,ny. .-. .. ,_
, Post office Eox 5000 -
Cleveland, Ohio 44101 - -
Lee A. Rau, Esq. -
Joseph A. Rieser, Jr., Esq. , ,
. Reed, Smith, Shaw & McClay , . . . . . , . . . . . , , , . , , , . . , ._ ,,. ,
Suite 404
. Madison-Duilding --
Washington, D. C. 20005 .
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Leslie Henry, Esq. '
Michael M. Eriley, Esq. , _ _ . . ..a. .
Roger P. Klce, Esq. '
Fuller, Henry, Hodge & Snyder 300 Undison Avenue .
Toledo, Ohio 43604 .
Pcnnsylvania Poker. Company . . . . . , . . . . . . . . . .. .,m,,,,,,....,,,
" One East Washington-Street - , , , . . . , , . , , .
Ucw Castic, Pennsylvania 15103 Eliza'beth'S. Bokers, Esq.
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Chairman Atomic Safety & Licensing Board
U.S. Nuclear Regulatory, Commission -
Washington, D. C. 20555 ,
Eduard Luton, Esq., Member
. Ik Atomic Safety & Licensing Board .- -
U.S. Nuc1 car Regulatory C,ommission - '
Washington, D.C. 20555 ,
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Thoraas U. ncilly, Esq. , Member . -
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-l Atomic Safety & Licensing Board -
U.S. Nuc.lcar Regulatory Comnission '
Unshington, D. C. 20555 l Secretary U. S. Nuclear Regulatory Commission Washington, D. c. 20555 ;
Attn: Chief, Docketing and Service Section
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